Ex Parte Gafford , 25 Nev. 101 ( 1899 )

The facts sufficiently appear in the opinion. Petitioner alleges that he is illegally restrained of his liberty by the warden of the state prison. It is shown that on the 26th day of January, 1895, the petitioner was duly sentenced by the district court of Washoe county to serve a term of four years in said prison for the crime of an attempt to break jail; second, that on the 5th day of May, 1895, the petitioner and one Seward Leeper, upon a joint indictment, trial, and conviction for the crime of an assault with intent to kill, were jointly sentenced by said court to serve a term of seven years in said prison, that it was not specified when said second term should begin, and that the petitioner has fully served said first term.

Counsel contends that the second sentence is void for uncertainty, in that it neither provides that the second term shall begin at the expiration of the first, nor at any other specified time. But a sentence which does not specify any time for the imprisonment to commence is not void. The better practice is not to fix the commencement of the term, but merely to state its duration and the place of confinement, where the statute does not otherwise provide. (State v. Smith, 10 Nev. 106; Bish. New Cr. Proc. 804, and cases cited.)

Where the defendant is already in execution on a former sentence, and the second sentence does not state that the term is to begin at the expiration of the former, the second will run concurrently with the first, in the absence of a statute providing a different rule. (21 Am. Eng. Enc. Law, 1075, note 4.)

The second contention is that where two or more defendants are convicted under a joint indictment, they must be separately sentenced; that the said second sentence being against said two defendants jointly, and not against each separately, it is void, in that it was not within the jurisdiction of the court. Under the statute, two or more defendants may be jointly indicted and tried for the same public offense; and, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment shall be entered accordingly, and the case as to the rest may be tried by another jury. (Gen. Stats. 4240, 4293.)

The court had jurisdiction of the subject matter embraced in the indictment, and of the defendants, and jurisdiction to enter judgment against the defendants on the joint verdict of the jury of guilty. The court having such jurisdiction, its judgment or sentence is not void, however erroneous it may be. But whether erroneous or not, this court cannot determine on habeas corpus. Habeas corpus proceedings cannot be used to authorize the exercise of appellate jurisdiction.

"We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. It is conclusively presumed to be right until reversed, and, when the imprisonment is under process valid on its face, it will be deemed prima facie legal; and, if the petitioner fails to show a want of jurisdiction in the magistrate or court whence it emanated, his body must be remanded to custody." (Ex Parte Winston,9 Nev. 71, and authorities there cited.)

Gen. Stats. 3689, provides that it shall be the duty of the judge, on the hearing, in case of habeas corpus, if the time during which the party may be legally detained in custody has not expired, to remand such party if it shall appear that he is detained in custody by virtue of the final judgment of any competent court of criminal jurisdiction, or of any process issued upon such judgment.

The writ issued herein is dismissed, and the petitioner remanded to the custody of the warden of the state prison.